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Krueger, Adm'r, v. The Louisville, New Albany and Chicago R'y Co.

The engineer testified that the difference in height caused an inch of lost motion, and Elijah T. Behan, master mechanic of the Michigan Central Railroad, who had for twenty-two years been acquainted with the construction, use and repairs ■of locomotives and attachments, testified that "the greatest amount of lost motion permissible is half an inch." Other witnesses testified that the lost motion caused by the attachment of the tender of engine number 9 to engine number 5 caused a much greater degree of lost motion, and rendered the use of the engine and tender dangerous because of the liability of the tender to become detached from the engine.

The appellant's intestate was killed by the parting* of the ■engine and tender, while engaged in shovelling coal into the fire-box of engine number 5. "The engine," as the engineer * *ays, " in an instant, without any warning, broke away from the tender and the rest of the train, and ran about two hundred feet," and the tender and some of the ears ran over the ■decedent.

It is the duty of the master to use ordinary care and diligence to provide safe working places and safe machinery and appliances for those in his service. A neglect of this duty is an actionable wrong. Bradbury v. Goodwin, 108 Ind. 286; Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151; Baltimore, etc., R. R. Co. v. Rowan, 104 Ind. 88; Indiana Car Co. v. Parker, 100 Ind. 181, and authorities cited p. 187.

This duty rests on the master, and he can not absolve himself from liability by delegating it to an agent. "Where the •duty is one owing by the master, and he entrusts its performance to an agent, the agent's negligence is that of the master." Indiana Car Co. v. Parker, supra. The negligence of a fellow-servant or co-employee, acting as such, will not authorize a recovery in any case, although the fellow-servant or co-employee may be a superior officer, an agent or a foreman; but, if the superior agent is charged with the performance of the master's duty, then, in so far as that duty is concerned, Jus acts and his negligence are the acts and the Krueger, Adm'r, r. The Louisville, New Albany and Chicago R'y Co.

negligence of the master, and not simply those of a co-employee or fellow-servant. Capper v. Louisville, etc., R. Co., 103 Iud. 305; Atlas Engine Works v. Randall, 100 Ind. 293 (50 Am. R. 798); Indiana Car Co. v. Parkert supra Ohio, etc., R. W. Co. v. Collarn, 73 Ind. 261 (273) (38 Am. R. 134); Mitchell v. Robinson, 80 Ind. 281 (41 Am. R. 812); Hough v. Railway Co., 100 U. S. 213; Mullan v. Philadelphia, etc., Co., 78 Pa. St. 25 (21 Am. R. 2); Gunter v. Graniteville, etc., R. R. Co., 18 S. C. 262 (44 Am. R. 573); Crispin v. Babbitt, 81 N. Y. 516 (37 Am. R. 521); Flike v. Boston, etc., R. R. Co., 53 N. Y. 549 (563) (13 Am. R. 545); Corcoran v. Holbrook, 59 N. Y. 517 (17 Am. R. 369); McCosker v. Long Island R. R. Co., 84 N. Y. 77; Brothers v. Cartter, 52 Mo. 372; Tierney v. Minneapolis, etc., R. W. Co., 33 Minn. 311 (53 Am. R. 35); Towns v. Vicksburg, etc., R. R. Co., 37 La. Ann. 630 (55 Am. R. 508).

The Supreme Court of Massachusetts was one of the first of the American courts to declare the rule that a master is not liable to a servant for an injury caused by the negligence of a fellow-sei vant, and bv no other court has the rule been more rigidly enforced; yet that court very fully approves the rule asserted by the authorities to which we have referred.

In Fordv. Fitchburg R. R. Co., 110 Mass. 240 (14 Am. Rep. 598), it was said: "The agents who are charged with the duty of supplying safe machinery are not, in the true sense of the rule relied on, to be regarded as fellow-servants, of those engaged in operating it. They are charged with the master's duty to his servant. They are employed in distinct and independent departments of service, and there is no difficulty in distinguishing them, even when the same person renders service by turns in each, as the convenience of the employer may require."

The instructions given in this case assert in most positive terms a doctrine directly contrary to that declared by the cases to which we have referred, for those instructions assert that the company is not liable for the negligence of Schwab el al. t. Lemon et al.

any of its officers, except its board of directors, and assert, also, that no matter what the rank, position or duties of other officers or agents of the company, it would not be liable for their negligence.

We are without a brief from the appellee, and do not know what position its counsel assumed in the court below, but we are clear that, in the respect indicated, the cause was submitted to the jury upon an erroneous theory, and for that reason we reverse the judgment, confining our decision to the one point, declaring that to be the point in judgment.

Judgment reversed.

Filed May 17, 1887.

No. 12,813.

Schwab Et Al. V. Lemon Et Al.

Assignment For Benefit Of Creditors.Deed.Preference of Creditors. Fraud.—A stipulation in a deed of assignment, made under the statute, that certain creditors shall be preferred and paid in full, is controlled and annulled by the statute, and the deed, in the absence of actual fraud, will be upheld as a valid general assignment.

From the Fountain Circuit Court.

L. Nebeker, H. H. Dochterman, N. Morris, L. Newberger and J. F. McHugh, for appellants.

T. F. Davidson and 1. E. Schoonover, for appellees.

Mitchell, J.—Albert D. Lemon, a debtor in embarrassed and failing circumstances, made an assignment of all his property for the benefit of all his creditors. The deed of assignment purports to have been made in pursuance of the statute regulating voluntary assignments. It assumes to make provision for preferring certain of the assignor's creditors, and requires that those mentioned should be paid Schwab el al. v. Lemon el td.

in full. In all other respects the deed conforms to the provisions of the assignment law. The appellants, comprising the firm of Schwab & Bros., filed an intervening petition in the Fountain Circuit Court, in which the matter of the assignment was pending. They set forth that an assignment had been made providing for preferences, and that they were judgment creditors of the assignor, and that their judgment had been recovered since the making of the assignment. It is conceded that the assignment was made, and that the assignee had taken possession of the property in pursuance of the statute regulating proceedings under the voluntary assignment law. The transaction is assailed solely on the ground that the deed makes provision that some of the assignor's creditors should be paid in preference to others, and that the petitioners are of the unpreferred class. The j>etition charges that the assignment is for that reason void, and it prays that it may be so adjudged, and that the supposed lien of the petitioners' judgment may be recognized as valid and binding against the property of the assignor in the hands of the assignee.

The court sustained a demurrer to the petition and gave judgment, upholding the assignment. The questions involved have all been determined in favor of the ruling below in the recent cases of Henderson v. Pierce, 108 Ind. 462; Redpath v. Tutemiler, 109 Ind. 248; Seibert v. Milligan, 110 Ind. 106.

The conclusion arrived at in those cases was, that, in the absence of actual fraud, a deed of assignment, under the statute, will be upheld as a valid, general assignment, notwithstanding a provision that certain creditors shall be preferred. Such a provision will be controlled and annulled by force of the statute.

Judgment affirmed, with costs.

Filed May 17, 1887.

McBurnie v. Seaton et al.

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No. 12,408.
APPEAL.-Satisfaction of Judgment.Dismissal. — Where the judgment ap-
pealed from has been satisfied, the appeal will be dismissed.
From the Vanderburgh Circuit Court.
W. F. Smith, for appellant.
S. R. Hornbrook and V. Bisch, for appellee.

ELLIOTT, C. J.-The appellee's motion to dismiss this appeal must be sustained. It is shown, without contradiction, that the appellee has paid, and the appellant has accepted payment of the judgment from which this appeal is prosecuted. There is, therefore, nothing actually in controversy, and in such a case this court will not entertain the appeal. Monnett v. Hemphill, 110 Ind. 299. Section 632, R. S. 1881, forbids a party who has received money in satisfaction of a judgment from prosecuting an appeal.

Appeal dismissed.
Filed May 19, 1887.

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Case 2 163 1

No. 12,044.


JUDGMENT.-Conclusiveness of.--Parties.-Judgments are presumptively only

conclusive against parties in the character in which they sue or are

sued. SAME.-Estoppel.Former Adjudication. The estoppel of a judgment is

only presumptively conclusive where it appears that the suit and the issues were of such a character that the judgment could not have been rendered without deciding the particular matter again brought in

question. ESTOPPEL.–Former Adjudication.-- Pleading.–Answer.- Parties. - Mortgage.

- Foreclosure.-Judgment.--An answer to a complaint, in an action brought by the widow of the mortgagee to foreclose a mortgage given to secure

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